163 Ga. 352 | Ga. | 1926
The Court of Appeals certified the following question: '“Is a contract entered into by a duly organized bank for the future payment of a salary to its fiscal agent lacking in consideration in so far as the recited consideration relates to 'services already rendered and to be rendered in promoting and organizing said bank’?” The general rule is that a past consideration will not support a subsequent promise. 1 Elliott on Contracts, § 213; Shealy v. Toole, 56 Ga. 210; Willingham Sash &c. Co. v. Drew, 117 Ga. 850 (45 S. E. 237); Dutton v. Faulk, 159 Ga. 736 (2) (126 S. E. 718); and see Powell v. Georgia &c. Ry. Co., 121 Ga. 803 (49 S. E. 759); Neal v. Stanley, 17 Ga. App. 502 (87 S. E. 718). To this general rule there are some exceptions,
In some cases it has been held that where services are performed by promoters in the organization of a corporation, such services being beneficial to the corporation and such benefits having been accepted by the corporation with the knowledge and consent of all stockholders, there is an implied promise on the part of the corporation to pay for such benefits the reasonable value of such services. They would seem, however, to imply an obligation based upon a quantum meruit. The suit in the present case is based upon contract, and not upon quantum meruit. It follows, therefore, that the petitioners must recover on a contract with the cor
The second question is: “Would such portion of the recited consideration be invalid for the reason that the promise based thereon contravenes public policy, in that it seeks to charge the assets of a bank with payment for services of such character?” Whether such a consideration would contravene public policy would depend upon the facts. It can not be said that such a consideration in all cases would be void for that reason, as indicated in the preceding division of the opinion. In the case of Smith v. DuBose, 78 Ga. 413, 435 (3 S. E. 309, 6 Am. St. R. 260), this court said: “What is public policy? And where must we look to find it? And in ascertaining and applying it to the transactions of life, by what rules and precautions are the courts to be guided? On this latter topic, it is manifest from many decisions that judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court would be warranted in pronouncing the transaction void on this account. In Richmond vs. Dubuque and Sioux City Railroad Co., 26 Iowa, 190, 202, it is said that ‘the power of courts to declare a contract void for being in contravention of sound public policy is a 'very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.-’” It is within the power of the General Assembly to declare the public policy of this State. It has not done so on the question here propounded. In considering the question of whether remuneration for services in promoting and organizing a bank is lawhil or unlawful, the
The third and last question is: “Is the contract sued on lacking in mutuality so far as it relates to payment for services to be rendered by the fiscal agent, because of its provision that ‘ should the said company [the fiscal agent] at any time become dissatisfied with the management and operation of the said bank, then it may terminate its contract and take such steps as it may deem proper to sever its connection with and dispose of its interest in said bank’ ?” We answer this query in the affirmative. Compare Buick Motor Co. v. Thompson, 138 Ga. 282 (75 S. E. 354); National Surety Co. v. Atlanta, 151 Ga. 123 (106 S. E. 179); Oliver Construction Co. v. Reeder, 7 Ga. App. 276 (66 S. E. 955); 13 C. J. 337, § 188. This ruling is not in conflict with the case of Mackenzie v. Minis, 132 Ga. 323 (63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723). That case merely holds that one of the parties to the contract which was involved could legally terminate the same. It does not hold that the contract was binding on the other party.